Citation Nr: 0423772
Decision Date: 08/27/04 Archive Date: 09/01/04
DOCKET NO. 02-20 395 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for bronchitis.
2. Entitlement to service connection for a bilateral knee
disorder.
3. Entitlement to service connection for coronary artery
disease.
4. Entitlement to service connection for post traumatic
neuropathy of the left lateral chest wall.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. Hancock, Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from
April 1959 to June 1963 (Marines), and from May 1964 to March
1967 (Army), and had subsequent service with the Army
National Guard. These matters are before the Board of
Veterans' Appeals (Board) on appeal from a July 2002 rating
decision by Department of Veterans Affairs (VA) Regional
Office (RO) in Waco, Texas. The veteran provided testimony
before a hearing officer at the RO in October 2003. At the
hearing he withdrew two issues previously perfected for
appeal; entitlement to service connection for a left calf
disorder and for a missing tooth #19.
The issue of entitlement to service connection for post
traumatic neuropathy of the left lateral chest wall is
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, DC. VA will notify you if further action is
required on your part.
FINDINGS OF FACT
1. It is not shown that the veteran currently has a medical
diagnosis of bronchitis.
2. A knee disorder was not manifested during active service,
arthritis of the knees was not manifested in the first
postservice year, and there is no competent evidence relating
any current knee disability to the veteran's service.
3. Cardiovascular (to include coronary artery) disease was
not manifested in service or within one year following the
veteran's service separation; any current cardiovascular
disease is not shown to be related to service.
CONCLUSIONS OF LAW
1. Service connection for bronchitis is not warranted. 38
U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.6,
3.102, 3.303 (2003).
2. Service connection for a bilateral knee disorder is not
warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107
(West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309
(2003).
3. Service connection for coronary artery disease is not
warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107
(West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309
(2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Preliminary Matters
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA). See
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107. Regulations
implementing the VCAA are published at 38 C.F.R §§ 3.102,
3.156(a), 3.159 and 3.326(a). The VCAA and implementing
regulations apply in the instant case. In Quartuccio v.
Principi, 16 Vet. App. 183 (2002), the United States Court of
Appeals for Veterans Claims (Court) provided guidance
regarding the notice requirements mandated by the VCAA.
Well-groundedness is not an issue; these matters have been
addressed on the merits. The veteran was notified why
service connection for the claimed disorders was denied in
the July 2002 rating decision and in a November 2002
statement of the case (SOC). A May 2001 letter (before the
decision appealed), specifically noted the "VCAA," and
informed the veteran what evidence was needed to establish
service connection, and of his and VA's respective
responsibilities in claims development. While the letter
advised him that he should submit additional evidence in
support of his claim within 60 days, it also advised him that
evidence received within a year would be considered. An
April 2004 letter was issued to meet the notice requirements
enunciated by the Court in Quartuccio, supra. Everything
submitted by the veteran to date has been accepted for the
record, and considered.
As to notice content (and specifically that he should submit
everything pertinent), the letters advised the veteran what
type of evidence (to include medical records showing current
disability and nexus) was needed to establish service
connection (and by inference what he should submit). He has
received all essential notice, and is not prejudiced by any
technical notice deficiency along the way. See Conway v.
Principi, 353 F.3d 1369 (Fed. Cir. 2004).
Regarding the "duty to assist," the RO has obtained the
veteran's service medical records and postservice private
medical records. He has been afforded VA examinations for
the claimed disorders. He has not identified any pertinent
records outstanding. VA's duties to assist, including those
mandated by the VCAA, are met.
Factual Basis
Service medical records, including medical examination
reports dated in March 1959 (enlistment), June 1963 (release
to inactive duty), March 1964 (enlistment) and March 1967
(separation) contain no findings pertaining to any of the
veteran's claimed disorders. A September 1988 outpatient
record shows a diagnosis of resolving bronchitis. A February
1989 Statement of Medical Examination and Duty Status shows
that the veteran was on active duty (annual training) when he
was treated in September 1988. A December 1989 letter from
the Texas Army National Guard shows that the veteran suffered
a myocardial infarction (MI) in October 1988, and that his
personal physician had cleared him to do physical training.
A June 1990 Report of Medical History notes that the veteran
was status post MI in 1988, and status post angioplasty in
October 1988. He was placed on a permanent profile for his
cardiac condition in May 1992. An August 1994 Physical
Profile report shows that chondromalacia of the knees was
noted. The veteran was instructed to not participate in
running.
On VA examination in May 1978 there were no complaints,
abnormal findings, or diagnoses pertaining to the
disabilities at issue.
An October 1988 private discharge summary shows a final
diagnosis of acute anteroseptal myocardial ischemia.
A December 1988 private medical record shows a diagnosis of
atherosclerotic coronary heart disease with onset of acute
anterior myocardial infarction.
A September 1996 private medical record shows a diagnosis of
right knee degenerative arthritis.
An October 1996 private medical record shows a diagnosis of
single-vessel coronary artery disease.
On April 2002 VA respiratory examination, review of medical
records revealed no specific history of bronchitis. Under
the diagnosis section of the report, it was noted that the
veteran denied residuals of bronchitis. Examination was
noted to be within normal limits. A VA chest X-ray in April
2002 was interpreted as normal.
On April 2002 VA orthopedic examination the examiner noted
that the veteran had a history of bilateral knee pain he
related to his active service. X-rays showed early stage
degenerative joint disease of each knee. Degenerative joint
disease of the knees, right greater than left, was diagnosed.
On April 2002 VA heart examination it was noted that the
veteran had a cardiac history dating back to October 1988,
when, while mowing his yard, he felt weak and his wife noted
that he looked pale. He went to a private hospital where an
acute anteroseptal infarction was diagnosed. Coronary artery
disease, with previous anteroseptal myocardial infarction was
diagnosed.
A May 2002 Report of Contact shows that the veteran informed
VA that it had all his service medical records from the Texas
Army National Guard.
The veteran testified in October 2003 that he was never
treated on active duty for bronchitis or any chronic lung
disease. See page 3 of hearing transcript. He added he
first had knee pain in 1994 while with the National Guard,
and denied any injury during his service, to include during
his National Guard duty. He alleged that his current knee
problems arose as a cumulative effect of wear and tear of 35
years of service. See pages 5 and 6 of hearing transcript.
He denied ever having high blood pressure on active duty.
See page 7 of hearing transcript.
Laws and Regulations
Service connection may be established for disability
resulting from disease or injury incurred in or aggravated by
active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R.
§ 3.303. Service connection may be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disability
was incurred in service. 38 C.F.R. § 3.303(d).
The term "active military, naval, or air service" includes
active duty; any period of active duty for training during
which the individual concerned was disabled or died from a
disease or injury incurred or aggravated in line of duty, and
any period of inactive duty training during which the
individual concerned was disabled or died from an injury
incurred or aggravated in line of duty. 38 U.S.C.A. §
101(24); 38 C.F.R. § 3.6(a). The term "active duty for
training" includes, inter alia, full time duty in the Armed
Forces performed by Reserves for training purposes.
38 U.S.C.A. § 101(22)(A). The term "inactive duty for
training" means any duty prescribed for Reserves which is
not full-time (e.g., voluntary training and maintenance
duties of their assigned units). 38 U.S.C.A. § 101(23).
Certain chronic diseases including, as here pertinent,
arthritis and cardiovascular disease, may be presumed to have
been incurred in service if they become manifest to a
compensable degree within one year of discharge from active
service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§
3.307, 3.309.
In order to establish service connection for a claimed
disorder, there must be: (1) medical evidence of a current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. Hickson v. West, 12 Vet. App. 247, 253 (1999).
The determination as to whether these requirements are met is
based on an analysis of all the evidence of record and the
evaluation of its credibility and probative value. Baldwin
v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).
The Court has held that "where the determinative issue
involves medical causation or a medical diagnosis, competent
medical evidence is required." Grottveit v. Brown, 5 Vet.
App. 91, 93 (1993).
Once the evidence is assembled, the Board is responsible for
determining whether the preponderance of the evidence is
against the claim. If so, the claim is denied; if the
evidence is in support of the claim or is in equal balance,
the claim is allowed. 38 U.S.C.A. § 5107; Gilbert v.
Derwinski, 1 Vet. App. 49, 55 (1990). It is the policy of VA
to administer the law under a broad interpretation,
consistent with the facts in each case with all reasonable
doubt to be resolved in favor of the claimant; however, the
reasonable doubt rule is not a means for reconciling actual
conflict or a contradiction in the evidence. 38 C.F.R. §
3.102.
Analysis
Bronchitis
The threshold matter that must be addressed in any claim of
service connection is whether the claimed disability is
present. Here, the medical evidence does not show that the
veteran has bronchitis or any residuals thereof. In the
absence of proof of a present disability, there cannot be a
valid claim [of service connection]. Hickson, supra. See
also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).
The veteran was advised that to establish service connection
for a claimed disability, he must show that he has such
disability and that it is related to disease or injury in
service. Resolving (and thus acute, not chronic) bronchitis
was last noted in September 1988. On recent, April 2002, VA
respiratory examination the veteran denied residuals of
bronchitis, and examination was within normal limits. The
veteran has not submitted any evidence of a current diagnosis
of bronchitis or identified any treatment provider whose
records would show such disability exists. As a layperson,
he is not competent to establish by his own opinion that he
has bronchitis or to relate such disability to service. See
Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992).
Accordingly, the preponderance of the evidence is against the
claim, and it must be denied.
Bilateral Knee Disorder
As noted previously, there are three threshold requirements
that must be met in order to establish service connection for
a claimed disability. First, there must be competent
evidence (a medical diagnosis) of current disability. This
requirement is met. Degenerative joint disease (arthritis)
of both knees has been diagnosed, and chondromalacia has also
been noted.
The further two requirements to be satisfied are: Evidence
of disease or injury in service and competent evidence of a
nexus between the current disability and the disease or
injury in service. The earliest competent (medical) evidence
of clinical pathology of degenerative joint disease of the
knees is in 1996, long after the chronic disease presumptive
period for such disability. Consequently, presumptive
service connection is not for consideration. Regarding any
contention that a bilateral knee disorder was incurred on
ACDUTRA, such would have to be shown by evidence that the
disorder arose from an event while the veteran was actually
on a period of ACDUTRA. There is no evidence supporting such
proposition. As was previously noted, the veteran has denied
trauma to his knees. While chondromalacia was noted in an
August 1994 Physical Profile report, there is nothing in the
record relating such pathology to service (or suggesting such
relationship).
The Board notes that a prolonged lapse of time between
service separation and the earliest documentation of current
disability, as here, is a factor for consideration against a
finding of service connection. See Maxson v. Gober, 230 F.3d
1330 (Fed. Cir. 2000). Furthermore, there is no medical
opinion which relates the veteran's currently diagnosed
arthritis of the knees to service. The Board has considered
the veteran's allegations. However, as a layperson he is not
competent to render a probative opinion on a medical matter,
such as a nexus between his current bilateral knee disorder
and his military service. Espiritu, supra.
The preponderance of the evidence is against the claim;
hence, it must be denied.
Coronary Artery Disease
As noted above, coronary artery disease, was diagnosed on VA
heart examination in April 2002, and the veteran has a well
established history of cardiovascular disability. That he
has such disability is not in dispute. The two further
requirements that must be met to establish service connection
are: Evidence of disease or injury in service and competent
evidence of a nexus between the current cardiovascular
disease and a disease or injury in service.
The veteran's service medical records are silent as to any
cardiovascular disease, to include coronary artery disease.
The earliest competent (medical) evidence of such disease of
record is in 1988, when the veteran suffered a MI. This was
well beyond the chronic disease presumptive period, and
presumptive service connection is not for consideration. It
is also noteworthy, again, the lapse of time between service
separation (1967) and the earliest documentation of current
disability is a factor for consideration in deciding a
service connection claim. Maxson, supra.
Regarding any contention that a cardiovascular disease was
incurred on ACDUTRA, such would have to be shown by evidence
that the disease arose from an event (disease or injury)
while the veteran was actually on a period of ACDUTRA. There
is no evidence whatsoever supporting such proposition. To
this, the veteran informed the VA examiner at the time of his
April 2002 heart examination that in October 1988, while
mowing his yard he felt weak, and thereafter went to a
private hospital where an acute anteroseptal infarction was
diagnosed. It is neither alleged, nor shown, that this
occurred on ACDUTRA.
The record is devoid of any medical opinion which relates the
veteran's coronary artery disease to his active service. As
a layperson he is not competent to opine regarding the
etiology of a disease or disability. See Espiritu, supra.
Without any competent evidence relating the veteran's
coronary artery disease to service, the preponderance of the
evidence is against his claim. Hence, it must be denied.
ORDER
Service connection for bronchitis is denied.
Service connection for a bilateral knee disorder is denied.
Service connection for coronary artery disease is denied.
REMAND
On April 2002 VA examination the veteran provided a history
of blunt trauma to the left lateral chest wall in 1984, with
severe bruising. (Service medical records on file do not
document this event.) The diagnosis was post-traumatic
neuropathy, left lateral chest wall, related to blunt trauma
in military service.
The veteran testified in October 2003 that he sustained nerve
damage to his left side as a result of being struck by a tank
hatch in June 1984. He added that he did not seek treatment
at the time. See page 9 of hearing transcript. He added
that in 1989 a private physician in Garland, Texas told him
he had nerve damage as a result of a tank hatch injury. He
also mentioned that this injury had occurred during a 2-week
annual training duty period. See page 11 of hearing
transcript.
While the VA examiner in April 2002 linked the veteran's
claimed left lateral chest wall neuropathy to trauma in
service, it appears that the examiner may have based his
medical opinion on history provided by the veteran. A
medical opinion based solely on history supplied by the
veteran that is unsupported by the medical evidence is
lacking in probative value. Black v. Brown, 5 Vet. App. 177
(1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v.
Brown, 5 Vet. App. 458, 460-61 (1993). Additional
development is needed to resolve this matter.
In light of the foregoing, the case is REMANDED to the RO for
the following:
1. The veteran should be asked to identify
all sources of VA and non-VA treatment he
received for left lateral chest wall post-
traumatic neuropathy since 1989. He should
specifically furnish a signed authorization
for release to the VA of private medical
records of the 1989 treatment he was afforded
by a physician in Garland, Texas who told him
he had chest wall neuropathy due to being
struck by tank hatches. The RO should obtain
for the claims file copies of complete
records from all treatment sources
identified, including any VA records not
already in the claims folder.
2. The veteran should also be advised that
he may submit supporting evidence concerning
the trauma (being struck by tank hatches) he
claims caused his left lateral chest wall
neuropathy. He should be advised that this
evidence may come from alternative sources,
such as lay statements, buddy statements,
letters, and diaries, etc., and that such
detailed information is vitally necessary for
VA to attempt to obtain supportive evidence
regarding his claim.
3. Following any additional development
of the evidence deemed necessary (to
include if indicated developing for
evidence of chest wall trauma in service
and a VA nexus examination), the RO
should re-adjudicate the claim. If it
remains denied, the RO should issue an
appropriate supplemental SOC (SSOC), and
give the veteran and his representative
the opportunity to respond. The case
should then be returned to the Board, if
in order, for further review.
The purpose of this remand is to assist the veteran in the
development of his claim. He has the right to submit
additional evidence and argument on the matter the Board has
remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369
(1999). This claim must be afforded expeditious treatment by
the RO. The law requires that all claims that are remanded
by the Board for additional development or other appropriate
action must be handled in an expeditious manner.
______________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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